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U.S. v. BAILEY
November 14, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JAMAR BAILEY and ANTHONY GILMER a/k/a "Marco" and "T," et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
This Court has just dealt with one of the motions in limine in
this drug conspiracy case, which is set for trial beginning
November 28 or 29. This opinion addresses the questions posed by
the government's Santiago proffer and the responses to that
proffer by codefendants Jamar Bailey ("Bailey") and Anthony
Before this Court turns to the specific problems posed by this
case, it is worth spending a few moments on the standard opening
in the government's Santiago submission, which (as always)
presents a boilerplate discussion of the general principles
governing the admissibility of co-conspirator statements under
Fed.R.Evid. ("Rule") 801(d) (2) (E). Even leaving aside the
often no better than marginal usefulness of a generalized
discussion of such well-known principles, it would seem
appropriate for the government to assign one or more Assistant
United States Attorneys to a review and updating of that
standardized opening drawn from its archives: For any such memorandum to be dominated, as it is, by citations to caselaw a
decade or more old (and often much older than that) does not
instill much confidence in the presentation.*fn1 In that
respect it is particularly astonishing to receive a six-page
discussion of the law in this area that does not even mention the
bombshell opinion in Crawford v. Washington, 541 U.S. 36 (2004)
and that fails to discuss how and why Crawford does or does not
bear on the subject (of which more will also be said hereafter).
On to the substantive matters raised by the parties'
submissions. First, as to the existence or nonexistence of
Confrontation Clause considerations, the government's Mem. 5-6
No separate Sixth Amendment confrontation issues are
posed at a joint trial by the use of a non-testifying
defendant co-conspirator's statements which are
offered for their truth against another defendant.
This is because "the requirements for admission under
Rule 801(d) (2) (E) are identical to the requirements
of the Confrontation Clause." Bourjaily,
483 U.S. at 182. Thus, there are no "constitutional problems"
once Rule 801(d) (2) (E)'s requirements have been
But such a facile dispatch of the issue is oversimplistic more
thought is called for.
It must be remembered that throughout the Bourjaily
discussion of the Confrontation Clause (483 U.S. at 181-89) Chief Justice Rehnquist (writing for the Court majority) invoked Ohio
v. Roberts, 448 U.S. 56
(1980) to support its treatment of the
admissibility of co-conspirators' statements. Thus the Court said
(Bourjaily, id. at 182-83):
Because "`hearsay rules and the Confrontation Clause
are generally designed to protect similar values,'
California v. Green, 399 U.S. [149, 155 (1970)],
and `stem from the same roots,' Dutton v. Evans,
400 U.S. 74, 86 (1970)," id., at 66, we concluded
in Roberts that no independent inquiry into
reliability is required when the evidence "falls
within a firmly rooted hearsay exception." Ibid. We
think that the co-conspirator exception to the
hearsay rule*fn2 is firmly enough rooted in our
jurisprudence that, under this Court's holding in
Roberts, a court need not independently inquire
into the reliability of such statements.
On that score last year the Supreme Court surprised the legal
community by overruling Ohio v. Roberts and its "reliability"
approach in the Crawford decision.
It is early in the day to reach definitive conclusions as to
the impact of the unexpected Crawford decision. Indeed, the
Supreme Court itself has agreed to hear two cases this Term that
should cast light on the concept of "testimonial statements." But
at least for the present this Court is constrained to follow the lead of our Court of Appeals, as expressed in this brief
statement in United States v. Jenkins, 419 F.3d 614, 618
(7th Cir. 2005):
As to the Confrontation Clause argument, Crawford
does not apply. The recordings featured the
statements of co-conspirators. These statements, by
definition, are not hearsay. Crawford did not
change the rules as to the admissibility of
In summary, no generic attack by defendants on the
admissibility of co-conspirator statements will be entertained by
this Court. At the same time, the risk of an erroneous conviction
stemming from such broad brush treatment counsels caution when it
comes to admitting statements that might be viewed as being
located at the margin. As with all Santiago proffers, then, the
statements offered by the government will have to be evaluated on
an individualized basis as they arise during the trial.
There is more. Although the government's proffer (if it
delivers as advertised) has certainly demonstrated the existence
of a drug conspiracy, Bailey has voiced a threshold challenge to
his asserted involvement as coming under the buyer-seller rubric
rather than placing him as a participant in the conspiracy. At a
minimum that would appear to call for a jury instruction covering
that alternative, but in this instance the assertion is
sufficiently serious to call for a swift government response (as far in advance of the imminent trial as possible).*fn3 This
Court looks forward to receiving that response promptly, so that
appropriate ground rules may be established for the litigants.
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